Most of my work with FMLA clients in Texas involves helping them after they have sought FMLA leave and the employer has already violated their FMLA rights. As much as they need urgent help from an employment lawyer, it’s equally as important that employees understand how to properly exercise their rights under FMLA to ensure the employee can take FMLA leave when needed.
Much of the guidance available online regarding FMLA leave is written by management-side employment attorneys and management-side industry groups to help employers maneuver FMLA regulations and sometimes even to foil legitimate claims for FMLA leave. This guidance often gives the impression that if you aren’t pregnant or diagnosed with cancer then any other FMLA leave request is FMLA abuse. That’s just not true. It’s not what the law says. The best way to steer clear of staff who think they know your medical condition better than your doctor or therapist is to know your FMLA rights and your company’s policies. Today’s post will discuss seven key tips to help you make this happen.
1. Give your employer timely notice of your request.
FMLA regulations indicate that an employee should give thirty days notice prior to an FMLA-protected leave period when the employee can provide notice or as soon as practical. If the employee can schedule treatment, such as a ongoing outpatient treatment, and the employee can give advance notice then the employee must do that. If the need for leave arises suddenly, particularly for an emergency, then the employee needs to give notice as soon as the employee can.
This is important for three reasons. First, FMLA regulations say you must provide this prior notice and you want to make sure you are following the law to avoid your employer delaying or denying approval when you could have put them on notice earlier. Second, there is a certification process that most employers choose to follow that requires some paperwork. You ideally want to have this paperwork in your employer’s hands as soon as possible. That way both sides can solve problems before your requested leave should start. Third, practically, you want to keep your relationship with your employer on a positive tone and giving ample notice will help ensure your boss doesn’t feel like you have caught them by surprise.
2. Understand your employer’s FMLA request and certification process
Most employers have established policies to request FMLA leave and the certification paperwork they require to evaluate an FMLA request. You must understand this process to make sure your employer properly evaluates and approves your request before you anticipate your leave starting. You can request FMLA leave in ways other than the employer’s established policy. By following that policy you give yourself the greatest opportunity to deal with the staff that best understands FMLA leave for the employer. It also gives you the best possibility that your request will receive the right attention.
The certification process is particularly important to understand as a valid request for FMLA leave can die on the vine when certification is not properly provided. Certification means the employer can request information to determine whether your professed condition is a “serious medical condition” under FMLA and how your leave request relates to that condition. Typically employers use template forms for certification that your treating medical professional must complete. Under the FMLA regulations an employer must give you at least fifteen days to produce certification and if the certification form is faulty then a minimum period of time to cure defects before your request can be rejected.
If you have an urgent or scheduled need for leave then delaying approval while you attempt to provide a valid certification can create a real mess. Review the employer’s form and make sure you understand what they need so you can ensure you leave your care provider’s office with the right information the first time.
3. Understand your employer’s recertification process
In addition to the initial certification your employer can request a new certification (aka recertification) periodically while you are on leave no matter whether it is a continuous leave period or intermittent leave. Generally your employer can ask for recertification no more than every thirty days. It may choose not to require recertification or may ask for recertification less frequently. Find out what your employer’s policy is before you take leave. This will make it more convenient to ask your care provider to complete a recertification form on a normal visit rather than scheduling additional time to try to get a form filled out (not to mention paying an extra copay). It will also help avoid having to communicate with your employer while you are on leave and try to fish out the form from them.
Recertification also comes into play if you request an extension of your FMLA leave. Your employer may request recertification for the extension even if the request is less than thirty days after the FMLA leave begins. So if you originally requested two weeks of leave and then a complication arises with your medical condition and you need another two weeks then your employer can ask for certification of the extension. Again understanding the employer’s process ahead of time will make your life easier while you are on leave.
4. Understand if your employer requires a fitness for duty certification to return to work
In addition to certifying the leave, your employer can request additional certification from your care provider to return to work. This is in many ways like the initial certification but in reverse. Just as your employer can delay or deny your FMLA leave request if you fail to produce certification when requested, your employer can deny your return to work if you fail to timely provide fitness for work certification when requested. Employers are not required to request a fitness for duty certification. They are permitted to ask for it and not allow you to return to work without it. That can put you in a sticky position and put your job at risk.
Understand your employer’s policy and certification form requirements before your scheduled return so you can have the fitness for duty certification ready to go before your return and resolve any problems before your anticipated return date.
5. Understand your employer’s call in procedures for FMLA leave
We’re past dealing with certification but not quite done with providing notice to your employer. Your employer can require you to comply with its normal call in procedures for FMLA leave. It may not hold you to a tougher standard for FMLA. It can hold you to the normal policy. That can include requirements that you provide notice in a particular manner. Failing to follow the normal procedure can result in your leave not protected by FMLA and subject to the employer’s whims.
Understanding and following this procedure is important for intermittent or emergency leave. Typically you will not need to follow a call in procedure for a continuous, pre-approved FMLA leave period. Your employer has already been put on notice of the specific dates of leave. You generally do not need to call in every day of that leave period. However, if leave was not pre-approved then you must follow the call in procedure to invoke FMLA. For example, you have a car wreck and the ambulance transported to the hospital with injuries. You could not request FMLA leave ahead of time but your leave may be eligible for FMLA leave. You would need to call in that leave under the normal procedure as soon as practical.
Similarly, if intermittent leave is approved, your employer may require you to follow call in procedures for intermittent leave periods. Each time you fail to call in puts your job at risk.
6. Understand the employer’s process to request an extension of FMLA leave and follow it
You may have requested FMLA leave for less than the maximum permitted. Afterwards you discover you need additional FMLA leave, such as for a complication arising from childbirth or surgery. Be aware of your employer’s policy to request an extension and make sure to follow it. Your employer may require recertification or to communicate the extension request to a particular business group for processing. Make sure you put your employer on notice as soon as possible of the need to extend leave. Prepare to provide recertification in advance of the end of your initial leave period.
7. Understand how your employer calculates FMLA leave eligibility
- Who is an eligible employee?
- What is an eligible employer?
- What is the maximum length of medical leave protected by FMLA?
It also gives employers flexibility to determine when an employee becomes eligible for leave each year. An eligible employee can receive to up to twelve weeks of protected leave within a twelve month period. (Up to twenty-six weeks for care of an active military member injured in service.) The employer gets to choose how the twelve month period calculation. Employers may choose from four different schedules including: (1) the calendar year; (2) any fixed continuous twelve month period; (3) a rolling twelve month period looking forward; or (4) a rolling twelve month period looking backwards. (This blog post explains each FMLA twelve month period calculation in greater detail.)
There are two main reasons why you want to understand your employer’s elected formula. First, you want to plan out your leave to maximize your protections under FMLA. If you have taken leave during the current twelve month period or expect to need more leave then plan accordingly. If you do not understand the employer’s formula then you could ind yourself out of time. Second, your employer may shortchange your FMLA leave if the staff does not understand the formula themselves. Sometimes HR does not understand the employer’s adopted formula and applies what they think the formula should be.
If you don’t know the formula then you won’t be able to double check the work. You don’t want to wait until you are on leave to have this dispute with your employer. Make sure you know the formula and have planned accordingly in your leave request.